Judge denies Bobby Ferguson's, Kwame Kilpatrick's request to drop some charges

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DETROIT - 10:00AM Awaiting session to start in Judge Nancy Edmunds's courtroom.

Testimony has officially ended in the Kwame Kilpatrick federal corruption trial and closing arguments are due to start Monday morning. Today's session is to settle some outstanding matters including a decision by prosecutors to drop one of 3 tax charges against Bernard Ferguson. 

Prosecutors opposed a request filed on Bernard's behalf to acquit two other tax counts. 

Seems that Kwame Kilpatrick and Bobby Ferguson also asked for some extortion charges to be dropped- we'll soon find out. 

Defense counsel is all seated at the defendants' table minus Kwame's lawyer Jim Thomas. The defendants are absent this morning, their presence is not required for this session. 

10:10AM And here comes Jim Thomas. 

10:14AM Judge Edmunds enters the courtroom. Defense counsel introduces themselves and judge greets them. 

Getting ready to argue rule 29 and jury instruction issues. 

John Shea, Bernard's lawyer is beginning. Shea says that the government has indicated the 2007 tax year count has been dismissed so only dealing with 2004 tax year. That was filed on October 15th 2005. Case investigator of IRS served subpoena in February 2007 for documents. At some point that month, an unsigned document was produced to the IRS. 

Edmunds having issue with hearing Shea on the microphone. 

Shea says there is no direct evidence that Bernard Kilpatrick signed to authorize the tax document. All government has is testimony of Cassandra Jones and Allen Young. Shea says that Young's explanation of not having a document at time of trial because it had been longer than 3 years, does not hold up. For the 2005 tax year, they were able to produce a signed document. In 2007, they acknowledged they couldn't have a signed document because all interactions with Bernard were by phone. 

Judge asks about implications of PIN used to file the tax return. 

Shea says let's assume that Bernard gave them a PIN, it means nothing unless he has also given them the PIN under penalties of perjury. 

Shea says that on the tax form that a taxpayer is supposed to sign includes the designation of the PIN and the declaration that the taxpayer has reviewed the document. Shea doesn't think that the PIN matters for the purposes of a rule 29 motion. 

Judge wants to clarify argument. Asks if by giving PIN he authorized filing but did not swear it was true under penalty of perjury. 

Shea says not quite. Maybe in part. Shea says its just a "ministerial" function- not sure what that is. 

Judge says she understands there is no signature but is different from saying that he didn't know what was in the return and thought it was accurate. 

Shea says it is not enough for a taxpayer to tell a 3rd party to file an inaccurate tax form. Shea says it's a perjury statute so you can't have a 3rd party commit party on your behalf. 

Shea says tax preparer has obligation to get tax form signed. Shea says government's argument that if someone takes the stand and doesn't take the oath, they don't have to tell the truth. 

Judge says there is persuasive force to the government's argument. 

Jennifer Blackwell responds for the government. Agrees that there is circumstantial evidence that Bernard paid tax penalty in full. Says Jones and Young said they would have gotten signature under normal course of practice. Says they did get his consent and this should be sufficient to take to jury. 

Judge will take the matter under advisement and will submit to the jury. 

Susan Van Dusen for Bobby Ferguson looking for judgment of acquittal on a couple of counts- 2,3,7,8 and 10- because of insufficient evidence from the government. 

Van Dusen is interrupted by her own cell phone ringing. 

Talking about 3 counts against which they did not move because they related to payments of Ferguson on behalf of his company. 

Blackwell gets up and says if you read the counts closely there is a difference in the counts that they chose not to include. Blackwell says they don't need to show that money flowed directly from Bobby to Kwame just that they aided and abetted each other. 

Jim Thomas did not file a brief. Specifically addressing mail fraud counts. Thomas has no argument on the 5 extortion counts that Van Dusen was discussing. 

Judge denies Ferguson's motions for acquittal of the 5 extortion counts. 

Judge says she is comfortable with submitting those 5 counts to the jury so the motions under rule 29 are denied. 

10:34AM Now Thomas is back on mail fraud counts 18 to 27 and wire fraud were 3 counts. Thomas says relates to Kwame's solicitation of funds and the video of Kwame's campaign speech. Says the counts were from 2006, 2007 and 2007 and the video of Kwame is from 2001. 

Says there is no proof that Kwame sent those letters. 

Blackwell says government obviously disagrees with Thomas. Talks about April Edgar's testimony of taking monies from the Kilpatrick Civic Fund and that Kwame was very aware that he was using money from the Civic Fund. Says that Kwame was at some fund-raising dinners that had been mentioned in the solicitation letters. 

With respect to fraud, says government can show intent to defraud and there is sufficient evidence on record that Kwame was benefitting from Civic Fund. Points to testimony of Matt Allen and the misrepresentation to public on use of Civic Fund. 

Judge denies these motions and feels there is sufficient evidence to submit to the jury.

10:39AM Judge says she wants to take up 2 substantive issues first. Subsciption instruction and the RICO conspiracy instruction. 

Shea is up first. Says he has submitted an appropriate subscription instruction on 3rd party tax filing. Says he crafted some language and only did so in response to government's suggested language that a taxpayer could subscribe a return merely by authorizing a 3rd party. 

Blackwell says with respect to definition of subscription they would ask for definition that explains electronically filing return. 

Subscribe, means signing one's name to a document, and it's for all purposes the same as signing one's name to a piece of paper. 

Judge agrees with the definition. 

Now on to RICO conspiracy instruction. 

Van Dusen says they object to entirety of RICO instruction they received yesterday. Says when they met on Wednesday, the position by all defense was that they objected to the government and thought there was another case that cites that had a greater degree of clarity. 

Van Dusen says that they were "perplexed" by the instructions. Says she would like to return to square one and start over. 

Judge says that the case cited never had any issue about proving the existence of an enterprise. Judge says that the government does need to prove existence of an enterprise in this case. Says she doesn't love government instruction because it puts conspiracy third instead of first or second but does place RICO as an initial offense. Says she couldn't massage "Highwayman" case into this one. Judge Edmunds was the judge on the case. 

Says she likes the government's instruction better because it lays out elements better than the one from the 7th circuit that the defense proposed. 

Van Dusen says she doesn't oppose elements per se. Says instructions are overbroad and non-specific and the definitions are vague. 

Blackwell says she disagrees with judge's contention that they must prove enterprise. Says that the government feels that they have proven that an enterprise existed. Says this is obviously a conspiracy which is a meeting of the minds. 

As it stands, the judge says that since she has displeased everyone, she is going to go with the instruction that she submitted yesterday. 

Judge refers to other issues discussed in chambers' conference. 

11:00AM Judge says that in originally submitted instructions there was disagreement on instructions on multiple defendants charged with different crimes. 

Instruction on impartiality, defendants have asked for 3rd paragraph added asking if jury can't put their feelings aside, they have to inform the judge immediately. The judge says it's superfluous and she is not including it. 

Instruction on Emma Bell being an alcohol-abuser and judge is declining to give that instruction. Doesn't believe it is appropriate. Instruction on extortion under color of official right. Judge says the question was whether Kwame's name should be used in the context of instruction and  judge says because there are multiple defendants it would be confusing without his name. So giving that one to government. 

Fifth issue is extortion through economic harm. Believes government has better instructions but has added defense definition of "harmful." 

Sixth issue is aiding and abetting instruction. Government has modified one to include defendants names and judge is going to do that because it is confusing without it. 

7th issue goes to government instruction. 

Bribery instruction, judge agreed with defendant that they should change Kwame's name and should change from "Detroit" to "business of his office." 

On aiding and abetting instruction, will go with government to include Bobby's name. 

10th issue has to do with mail fraud. Government and defense differed on one sentence. Judge says she will give instruction that jury must find that Kwame intended to use money from Civic Fund for personal expenses and for expenses related to his political campaigns. 

Issue 11 has definitions of RICO statute. 

Going with government instruction on obstruction of justice. 

On act of public official accepting bribes, she will give both government and defense instructions. 

Judge is done going through instructions except for conspiracy instructions still be argued. 

Judge asks if everyone is satisfied with verdict form. Don't appear to be any objections. 

Blackwell discussing count 2 with respect to Bernard Kilpatrick going on the record. Judge says it is noted. 

11:13AM Going to argue the rest of the conspiracy charges in judge's chambers.

About the author

Alexandra Harland is a Princeton undergrad and has a masters degree in International affairs with Columbia. A Montreal native, she worked with the Daily Telegraph newspaper for a few years before transitioning to TV, when she worked at ABC News with Peter Jennings. Alexandra has also worked in newsrooms in both Detroit and Boston.

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